The Fairchild exception was formulated by the House of Lords to deal with a situation of multiple defendants, an indivisible injury, and an evidentiary gap. In that case, the claimants all suffered from mesothelioma, which resulted from their exposure to asbestos by the defendant employers. All of the employers had breached their duty of care but, owing to the nature of mesothelioma, there was no way of establishing a but for causal link between any employer’s exposure and any claimant’s injury. The House of Lords, therefore, departed from orthodox causal rules to find all the defendants liable for materially increasing the risk of the disease occurring, even though no claimant could establish causation of mesothelioma itself.

This principle has not received a universally positive reception, largely because it represents such a dramatic departure from long-established causal rules. It has been said by some commentators to fly in the face of corrective justice principles. Others, however, have welcomed it as a means of achieving practical justice in what would otherwise be a very difficult, if not impossible, situation for a claimant to succeed. In the most recent Supreme Court consideration of the issue, Sienkiewicz v Grief, Lord Phillips felt bound to apply the principle, despite being obviously reluctant to do so. The facts of Sienkiewicz, however, were quite different to those of Fairchild; not least because, in the former case, some of the sources of the asbestos were not tortious. The claimants in Sienkiewicz had been exposed to asbestos as a result of the defendants’ breaches of duty, but the background environmental sources actually accounted for the greater part of their total exposure. None the less, those claimants succeeded on the basis of the Fairchild principle and the defendants were, therefore, liable for their injuries. 

What is more, the liability of the defendants in Sienkiewicz was on a joint and several basis as a result of section 3 Compensation Act 2006. This Act was passed in response to Barker v Corus, a House of Lords decision which determined that, whilst the Fairchild exception would apply to a situation in which a claimant had been exposed to asbestos as a result of his employers’ breach of duty as well as during periods of self-employment, the resultant liability would be apportioned between those different sources, as opposed to being imposed on the defendants jointly and severally. Parliament saw fit to reverse the effect of this decision for cases involving asbestos exposure and mesothelioma, and section 3 of the 2006 Act now dictates that liability imposed in such cases on the basis of the Fairchild principle will be joint and several. Particularly on the facts of Sienkiewicz, this could be seen as a harsh result. 

ii. Analytical response I

The so-called ‘Fairchild exception’ is both unorthodox and controversial, but it is nonetheless a principled and helpful device, which enhances rather than detracts from the coherence of the causal inquiry in negligence. In Fairchild, the House of Lords was faced with a forensic dilemma: apply the orthodox test of causation and make it impossible for any claimant suffering from mesothelioma as a result of asbestos exposure by more than one defendant ever to recover in negligence; or create a principled exception to that orthodox test to achieve a measure of practical justice. It chose the latter option. 

In recognising, exceptionally and within very narrow parameters (see in particular the judgment of Lord Bingham), that liability in negligence could be imposed for a proven material increase in the risk of a claimant’s injury occurring, the House of Lords was abiding by, rather than departing from, the principle of corrective justice. The Court was faced with a group of duty-breaching defendants, a set of claimants with severe and terminal illnesses, and the received knowledge that at least one of the defendants was responsible for causing each case of the disease. The problem was that but for causation could not be established on the balance of probabilities against any particular defendant because of the evidentiary gap that exists in relation to mesothelioma (or certainly did at the time) that medical experts have insufficient knowledge about the disease’s causal mechanism to be able to say that any factor was more likely than not to have led to its development. Had the House of Lords not formulated the exceptional principle that allowed the claimants to recover, it would effectively have denied a remedy to large numbers of claimants (present and future) who suffer a loss as a result of another’s negligence. The Fairchild exception, therefore, comes closer to achieving corrective justice than the alternative, conventional approach. As such, as devised, it was both principled and helpful and, owing to the House of Lords’ careful limitations of its application, not a threat to the coherence of the broader causal inquiry in negligence. 

This is true, however, only on the particular facts of Fairchild itself. A wholesale adoption of liability for materially increasing the risk of injury would defeat the object of the causal inquiry in negligence. With this in mind, the House of Lords was careful clearly to delineate the (very narrow) parameters within which the exception should be applied. According to Lord Bingham,  there should be multiple negligent employers (all of whom had exposed the claimant to asbestos at work), an evidentiary gap such that the claimant cannot prove which employer was responsible for the directly causative dust, and a situation in which any non-industrial exposure to asbestos can be effectively discounted. Unfortunately, whilst the courts have generally been astute to deny the application of Fairchild to every situation in which a claimant is struggling to prove causation, Sienkiewicz v Grief took the exception beyond its intended limitations. In applying it to grant recovery to claimants who had been exposed to asbestos by both tortious and non-tortious sources, the Supreme Court rendered the device less principled than it was when originally formulated. It might be more accurate to say that whilst the Fairchild exception itself is both principled and helpful, the Sienkiewicz extension of it is neither, therefore the coherence of a causal inquiry accommodating both is somewhat compromised. 

Explanation

This answer is much more analytical and therefore likely to receive a higher mark. 

You will notice how the very first sentence of the answer directly addresses the question. It helpfully uses the exact language in the question to clearly demonstrate to the reader her view. This is also mirrored at the end of each paragraph, which effectively links the author’s analysis back to the question at hand.

Additionally, throughout the answer there are clear references to the author’s own view. For example, ‘The Fairchild exception was both principled and helpful and, owing to the House of Lords’ careful limitations of its application, not a threat to the coherence of the broader causal inquiry in negligence’. We are therefore under no illusions as to what the author’s opinion is. Her opinion is not disguised behind the various judgments or opinions raised.

The author also effectively nuances her argument by demonstrating knowledge of the way in which Fairchild has been subsequently applied and developed. This is important. Often a good answer will not only answer the question but will recognise its nuances. Perhaps certain parts of the question are correct, but not others. Or perhaps you agree with the question in respect of one or two particular cases, but not in others. Perhaps the question has made an assumption, which you believe to be false. An excellent answer will therefore ‘play around’ with the question – making it clear that through answering it, they are not taking it at face value. 

iii. Analytical response II

The exception developed by the House of Lords in Fairchild v Glenhaven Funeral Services is both unprincipled and unhelpful. As such, it detracts from the coherence of the causal inquiry in negligence, and should be abandoned by the Supreme Court or Parliament as soon as the opportunity presents itself. 

In allowing the claimants in Fairchild to recover for their injuries, despite not having proven on orthodox criteria that any of the defendants caused their loss, the House of Lords undermined the integrity of the negligence inquiry. The whole point of the requirement that a claimant prove her causal submission on the balance of probabilities is to ensure that defendants only compensate claimants for injuries for which they are more likely than not responsible. In the absence of such a causal nexus, the justification for using the tort of negligence to compensate for losses falls away. If, as the Fairchild exception suggests, the need to compensate those who have suffered loss trumps the need for injuries to be linked to those who cause them, this can be more efficiently achieved through means better suited to that end, such as welfare or insurance schemes. To use the tort of negligence as a device for distributing loss without the constraints of a corrective justice nexus is both unprincipled and incoherent. 

Unfortunately, the consequences of this already unwelcome development now extend beyond the confines of the original factual framework on which it was based. What started off as an exception in very particular circumstances has now become a broader dilution of established common law principles. In Sienkiewicz, Lord Phillips clearly recognised this when he described the operation of the Fairchild exception, in combination with section 3 Compensation Act 2006, as “draconian”. His Lordship nonetheless felt compelled to apply the principle, so as to hold the defendants in that case jointly and severally liable, despite the fact that the greater part of the claimants’ asbestos exposure was, on the facts, the result of non-tortious, environmental exposure. This result is indeed draconian: a defendant can be liable for the entirety of a claimant’s loss despite, first, the fact that it merely increased the risk of the relevant injury occurring, and, second, the fact that the other (non-tortious) contributions to that risk were more significant in terms of the period of time over which they operated on the claimants. 

In its original guise, the Fairchild exception was unprincipled and incoherent. Its subsequent development, along with the statutory entrenchment of its iniquitous effect on defendants, has made it an even greater threat to the overall coherence of the causal inquiry in negligence. 

Explanation

This answer is comparable to the answer under Analytical response I and demonstrates an alternative way of approaching the question.
A key merit of this answer is its concise first paragraph outlining the author’s argument. A pithy and clear introduction with your view is commonly welcomed by examiners who may be marking hundreds of exam scripts.

It is also excellent that the author has provided a short conclusion at the end of her analysis. This is another important mechanism for emphasising to the reader that you have directly answered the question.

Her analysis is also well-structured into discrete and manageable paragraphs. There is no sense that she is ‘rambling’ or taking too many words to express her view. It is short and to the point, which gives her argument even greater impact.
Finally, the answer demonstrates a useful skill in using the various judgments and aspects of the law to support your own analysis. For example, the author makes great effect of articulating first and foremost her view and then drawing upon case law to support this. She is not simply articulating what the case law says. This helps to demonstrate to the reader her mastery and understanding of the law, which she can employ effectively to bolster her arguments.